Final Order 2

Order Details: Copy of Judgment
Pdf Text: ..1.. Sum Suit No.552/2018
MHCC010036242018 Presented on : 15-03-2018
Registered on : 04-06-2018
Decided on : 04-09-2026
Duration : 08 Y : 03 M : 00 D
Exhibit : 14
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMARY SUIT NO.552 OF 2018
Ashok Vissanji
Partner : Panel Source LLP
Age: 59 years, Occupation : Business.
Having its sales office at: 15, unique premises,
Bombay Dying Compound, V. S. Marg, Prabhadevi,
Mumbai- 400 025.
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...Plaintiff
V/s
Pawan Jain
Proprietor : Jain Plywood House,
Age: Adult, Occupation: Business.
R/at: Near Jaipur Glass factory, Tonk Road,
Jaipur – 302 018.
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] ..Defendant
Appearance :-
Ld. Adv. Seema K. Pagey and Adv. Rajendra Yadav for plaintiff.
Ld. Adv. Santosh Thakkar for defendant.
CORAM : HIS HONOUR JUDGE
P. B. LOKHANDE
COURT ROOM NO.82.
DATE : 04-09-2026
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J U D G M E N T
Facts in brief are as under:-
It is a plaintiff's contention that, he is the partner a
plaintiff firm i.e. Panel Source LLP, having its office at Prabhadevi,
Mumbai. The defendant is proprietor of Jain Plywood House, carrying
on business at Jaipur.
2. It is further stated that, the defendant has placed order of
5mm decorative plywood 115 and 103 pieces on 16.12.2016. The
plaintiff dispatched the goods through Rajhans Roadlines Pvt. Ltd.
along with invoice no.273/16-17 having bill amount Rs.3,13,518/-.
The defendant received the goods and released the partial payment of
Rs.2,56,478/- on 22.02.2017. The defendant has not paid the balance
Rs.57,040/-. The plaintiff maid phone calls and several e-mails, the
defendant failed to pay the balance amount. The plaintiff issued
demand notice to the defendant through his Advocate for balance
amount along with interest @18% p.a. of Rs.67,307/-. The defendant
replied notice dated 19.02.2018 through his Advocate, though
purchase of goods admitted, denied the balance claim of the plaintiff
on the grounds of higher rate, he want to returned the goods, etc. The
fact is that defendant has accepted the goods one year and two months
ago, never raised the difference of rate and confirmed the same rate of
invoice by making partial payment on 22.02.2017. Therefore, the reply
of defendant is false and vexatious, only to deny the plaintiffs dues.
The cause of action arose when defendant replied to the notice of the
plaintiff dated 19.02.2018. The suit is filed within limitation. The
plaintiff suit be decreed and defendant be the directed to pay
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Rs.67,307/- to the plaintiff along with further interest @18% on
Rs.57,040/- from the date of filing suit till realization.
3. On receipt of writ of summons, the defendant appeared
and tendered his appearance. Thereafter, the plaintiff took out
summons for judgment. The defendant has filed his reply to the
summons for judgment and applied for unconditional leave to defend.
The summons for judgment no.136/2019 vide order dated 30.09.2019
granted conditional leave to the defendant subject to deposit of
Rs.50,000/-. Accordingly, defendant has filed written statement on
04.11.2019, it is at Exh.03.
4. The defendant in the written statement, though admitted
the place of his business and the purchase order placed with plaintiff,
denied the other contention of the plaint and the claim on the grounds
i.e. the plaintiff having no locus standi to file the suit, suit is bad for
non-joinder and mis-joinder of the necessary party. Further contented
that, defendant inquired about the rates over the telephone and
thereafter confirmed his order with the plaintiff @ Rs.382.15/- per
square meter equal to Rs.36/- per square feet. However, the plaintiff
with ulterior motive and intention raised the invoice for an amount @
Rs.437.65 paise instead of rate being agreed of Rs.387.50/- as
previously charged in the earlier invoice.
5. It is further contended that, the defendant has purchase
first decorative veneer @ Rs.193.75/- per meter i.e. Rs.18/- per square
feet dated 20.07.2016. Second purchase @ Rs.382.15/- per square
meter i.e. Rs.35.50/- per square feet. Third purchase @ Rs.387.50/-
per square meter i.e. Rs.35.50/- per square feet. However, for third
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purchase transaction the plaintiff have raised invoice @ Rs.473.65/-
per square meter i.e. Rs.44/- per square feet instead of agreed rate @
Rs.36/- per square feet as per earlier transactions. The defendant has
informed the plaintiff to lift his goods back due to above invoice rates.
However, the plaintiff informed and requested the defendant to keep
the goods and pay the agreed amount for which the defendant has
paid Rs.2,56,487/- on 23.02.2017 as full and final payment. The
plaintiff has not raised any objection till 29.01.2018 as referred in the
plaint. Therefore, plaintiff having no cause of action to file the
recovery suit, the plaintiff suit be dismissed with heavy cost.
6. In view of above rival pleadings, my Ld. Predecessor have
framed issues at Exh.05, the same are reproduced herein-under and I
record its finding with reasons thereon:
SR. No. Issues Findings
1. Whether the defendant proves the
defendant has charged excess rate to the
tune of Rs.44 per square feet instead of
rate of Rs.36 per square feet?
… In the
negative
2. Whether defendant proves that payment
of Rs.2,56,478/- made to the plaintiff was
towards full and final settlement?
… In the
negative
3. Whether the plaintiff proves that he is
entitle to recover principal sum of
Rs.57,040/- from the defendant along
with the interest of 18% p.a.?
… In the
negative
4. What order and decree ? ...As per final
order.
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R E A S O N S
As to issue Nos.1 to 4.
7. For sake of convenience, above issues are taken together
for discussion. The plaintiff Advocate vehemently argued that, the
plaintiff has supplied goods to the defendant, who has accepted the
goods, made partial payment. This suit is for recovery of balance dues.
The plaintiff has adduced the affidavit of evidence and documents on
record, evidence closed pursis filed at Exh.13, written notes of
arguments on 02.03.2026, 25.08.2026 along with case law annexed as
per list of documents. The plaintiff suit is deserved to be decreed.
8. Ld. Advocate for defendant vehemently argued that, the
plaintiff has not adduced evidence whatsoever in nature. Further, draw
my attention to the order in the roznama dated 14.08.2025 and
01.12.2025. It will clearly show that, the order below Exh.11 and 12 is
rejected by the court. Therefore, no evidence by the plaintiff, suit be
dismissed.
9. Therefore, I deem necessary to go through the order
passed below at Exh.11 and 12 which is reflected in roznama. Firstly,
the order below Exh.11 specifically observed that “……..
On perusing
record, it appears that plaintiff has filed his evidence on affidavit on
09.10.2023 along with compilation of documents vide list Exh.-7. The
documents filed vide list Exh.-7 are photocopies. Further, it appears
that plaintiff has submitted that he does not want to submit original
documents. Thereafter, on 19.03.2024 plaintiff filed an application for
production of documents at list Exh.-10. It is the contention of plaintiff
that he has filed original document vide list Exh-10. However, said
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documents are photocopies. Thereafter, on 16.01.2025, plaintiff has
filed present application to produce document on record. As per order-
7, Rule-14, plaintiff has to produced documents on which he is relying.
Further, plaintiff can filed documents at the time of filing his evidence.
It is pertinent to note that plaintiff has neither filed original documents
at the time of filing the plaint nor filed at the time of filing his
evidence. Plaintiff can filed documents with the permission of the
court by showing sufficient reason, if documents were not filed either
along with the plaint or at the time of filing evidence. It is pertinent to
note that in the present application plaintiff has not mentioned single
word, why he has not produced documents either at the time of filing
the plaint or at the time filing evidence. Therefore, I am of view that
there is no sufficient cause to allow the application. Hence, I proceed
to pass the following order:- Application at Exh-11 is hereby rejected.”
10. Further, order passed below Exh.12 and reflects in
roznama, relevant portion is reproduced herein-under :-
“…..Perused
application, say and record. Heard both parties. Plaintiff has filed this
application to give direction to defendant to produce documents. It is
pertinent to note that counsel for plaintiff has filed application with
her signature and even affidavit is filed by her. It is pertinent to note
that counsel for party can file an application on behalf of his party.
However, counsel cannot swear affidavit in support of said application
on behalf of his party. Further, the documents which plaintiff wants to
bring on record i.e. statements of IDBI bank for the period 2016 to
2018 and Form 'C'. The plaintiff wants to bring on record these
documents to prove that defendant was doing the business during said
period. Though plaintiff has contended in the application, defendant
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made payment till 22.02.2017 through his account in IDBI bank.
However, this fact is not pleaded by the plaintiff in his plaint. Further,
there is no pleading with respect to Form 'C' in the plaint. Therefore,
though there is provision to give direction to defendant to produce the
said documents, however, as discussed above in absence of pleadings
in the plaint and application is not tenable. Hence, I am of view that it
would not be just and proper to give directions to the defendant to
produce the said documents. If plaintiff wants to prove said
documents, he has every right to call for concern witness to prove the
same. Thus, I am of view that application is not maintainable. Hence, I
proceed to pass following order- Order Application at Exh-12 is hereby
rejected.”
11. In view of above orders passed, it can be inferred that, the
plaintiff filed applications came to be rejected with liberty to prove his
case by calling the concern witnesses.
12. The plaintiff have filed his affidavit of evidence at Exh.6,
wherein he has been cross-examined by defendant Advocate. It is
admitted by the plaintiff that no document to show the plaintiff is
limited liability partnership firm, not filed any partnership deed,
Vakalatnama filed wherein it is mentioned as proprietor of Panel
Source LLP, Pawan Jain is owner of Jain Plywood house, no knowledge
whether Jain Plywood House is partnership firm, no knowledge
whether Pawan Jain is partner or proprietor of Jain Plywood House, no
document to show that Pawan Jain is either partner or proprietor of
Jain Plywood House.
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13. Ld. Advocate for the defendant vehemently argued and try
to harp upon the admission by the plaintiff in cross-examination.
However, it is pertinent to note that, the defendant has specifically in
written statement (Exh.3) contended in para 14 that, the defendant
agreed he had placed an order on behalf of the Jain Plywood House for
5mm decorative plywood 115 and 103 peaces on 16.12.2016 the
defendant admits that the goods were dispatched through Rajhans
Road Line Pvt. Ltd. along-with invoice number 273/2016-17 having
bill amount of Rs.3,13,518/-. The defendant further states that before
this order also defendant has purchased wooden ply and related items
for Jain Plywood House as described, i.e. first decorative veneer @
Rs.193.75/- per meter i.e. Rs.18/- per square feet dated 20.07.2016.
Second purchase @ Rs.382.15/- per square meter i.e. Rs.35.50/- per
square feet. Third purchase @ Rs.387.50/- per square meter i.e.
Rs.35.50/- per square feet. However, for third purchase transaction the
plaintiff have raised invoice @ Rs.473.65/- per square meter i.e.
Rs.44/- per square feet instead of agreed rate @ Rs.36/- per square
feet as per earlier transactions. It means that, the defendant not
denying the order placed and the goods received. Only dispute raised
in the written statement regarding the affixed at the rate of Rs.36 per
square meter instead of Rs.44 per square feet is claimed by the
plaintiff. In this background, whatever the admission in the cross-
examination by the plaintiff is of not so much matter/value to support
the defendant Advocate as specifically harped in the argument.
14. It is settled principle law that, in summary suit, when
leave to defend is granted under Order 37 of the CPC. The summary
suit effectively proceed like an ordinary suit. In this background, the
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procedure in the summary suit, documents adduce and its
consideration are on different footings and not like the production of
documents and tendering in evidence in regular suit are on completely
different footings.
15. Ld. Advocate for plaintiff vehemently argued that he has
produce document list at Exh.10 i.e. bill of exchange and ledge of the
defendant. Moreover, the plaintiff has also filed additional documents
by way of affidavit of evidence along with list attached from page no.1
to 8 i.e. notice by the plaintiff, postal receipt of the notice dated and
reply of the defendant to the said notice etc. Further brought to my
notice that, the plaintiff has moved application under Order 13 Rule 5
read with Section 151 of CPC. Already discuss above, my Ld.
Predecessor passed order below Exh.12 with specific direction.
16. Now only question remains, once leave to defend is
allowed, summary suit becomes regular suit, it is to be tried as regular
suit. In that circumstances, whether the documents in support of suit
are proved or not is to be consider. The Ld. Advocate for plaintiff
vehemently argued that and reiterated in written argument on the
point of evidence adduced. In support of argument, relied upon
following case laws
B. L. Kashyap Sons V/s JMS Steel and Power Corporations and
anothers, 2022 SCC online SC 59. and
KJSL Media Limited V/s Advert Communication Private limited 2015
0 Supreme (DEL) 4424.
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I have gone through the above case laws, the facts of the cited
case law are in respect of, when invoices are raised, defendant
acknowledged the bill can qualify as written contract within the
contemplation of Order XXXVII of CPC. The court have held that,
invoices containing terms like interest rate, payment schedule, i.e.
credit time, receipt acknowledgment can qualify as written contract if
acted upon. The fact of the present case in hand is that, there is
dispute between the plaintiff and defendant on the rate of goods, leave
to defend is granted, issues are framed, in that circumstances, plaintiff
has to proved and also defendant having burden to substantiate the
defence by cogent evidence. Now suit is tried as regular suit, therefore,
the plaintiff has to prove his case by adducing evidence, can not mere
rely upon the invoices raised and produced on record. Therefore, the
ratio of the cited case laws will not be helpful to support the argument
of plaintiff Advocate.
17. Admittedly the plaintiff has filed affidavit of the evidence
in support of the plaint at Exh.6, but has not tendered any
documentary evidence. Moreover, nothing has come in cross-
examination to support the defence of defendant on point of the excess
rate is charge by the plaintiff and there was final settlement between
them.
18. It is settled principal laws that, there is clear distinction
between the filing of document and tendering a document. Thus, a
document may be on file/record but still have no evidential value
unless it is duly proved according to the law. Procedure for tendering
documents includes i.e. party file a list of document, witness enters the
box, document is shown to the witness, witness identifies the
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document, witness explains his execution, source, custody or
relevance, the opposite party is given opportunity to object, court
decide to exhibit the same document is accepted as per Evidence Act.
Thereafter, the other side have opportunity to cross-examination the
witness on the oral and documentary evidence. After completion of
above procedure, it is a court to decide whether plaintiff or defendant
have proved there claim or defense.
19. In this suit, when leave to defend granted, issue are
framed at Exh.5. The burden is caste upon the defendant in respect of
issue no.1 and 2. In respect of issue no.3 burden is caste upon the
plaintiff. In view of above discussion, already hold that, even plaintiff
has filed documents on record, tendered evidence affidavit, cross-
examination by the defendant, specific order passe below Exh.11 and
12 by then court, rejected the application with observation that, the
plaintiff can prove their documents by calling upon the concern
witness. It is pertinent to note that, even opportunity given by the
court. The plaintiff has only filed documents on record and affidavit of
evidence. He has neither tendered the documents in evidence and nor
proved his claim as per Evidence Act.
20. Moreover, defendant has also not step into witness box by
tendering the evidence affidavit or any oral documentary evidence to
substantiate his defence. In view of above discussion I hold that,
defendant failed to prove that plaintiff has charge excess rate to tune
of Rs.44 per square feet instead of rate Rs.36 per square feet and
defendant has made payment of Rs.2,56,478/- to the plaintiff towards
full and final settlement. Further, I hold that, the plaintiff have also
failed to prove that he is entitled to recover principal sum of
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Rs.57,040/- from the defendant along with interest @18% p.a.
Accordingly I answer issue no.1 to 3 in the Negative and as to findings
of issue no.4, I proceed to pass the following order:-
O R D E R
1. The suit is dismissed with cost.
2. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(P. B. Lokhande)
Adhoc Judge,
City Civil & Sessions Court,
Mazgaon, Mumbai,
Court No.82
Dated : 04/09/2026
Dictated and typed on : 04/09/2026.
Signed by HHJ on : 04/09/2026. .
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Pooja R. Sonune
Name of Typist04/09/2026 At about 05:30
p.m.
Name of the Judge (With C.R. No.) HHJ Pramod B. Lokhande
(COURT ROOM NO.82)
Date of Pronouncement of
JUDGMENT / ORDER
04/09/2026
JUDGMENT / ORDER signed by
P.O. on
04/09/2026
JUDGMENT / ORDER uploaded on 04/09/2026
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